7 Questions to Consider When Taping Depositions for Texas Civil Cases

If you’re practicing in Texas and want to incorporate taped testimony in your upcoming case, you’re in luck.  Much like California and New York, Texas allows parties to use taped deposition testimony as evidence in the same manner they can with stenographic deposition transcripts. Just because Texas treats taped depositions as eligible evidence doesn’t mean that any video you take is automatically admissible.  You’ll still need to follow critical steps when sending out notices and conducting depositions to ensure your taped deposition footage is admissible. 

Fortunately, much of these steps revolve around how you prepare to take the interview, along with how you provide notice to other parties.  Here are some things to keep in mind as you prepare for your next deposition:

  • Did You Notify All Parties? —If you want to tape any deposition related to your case, you’ll first have to timely notify all parties of your intent to do so. Under Rule 199.1, you can do this by stating your intent in the original deposition notice or by sending a subsequent notice at least 5 days before the deposition date. You must state that you are videotaping the deposition and indicate if it will be stenographically recorded simultaneously.  If you are requesting to tape the deposition, you must provide a certified oath-giver and ensure the final video is an intelligent, accurate, and trustworthy depiction of the deposition. You will also be responsible for furnishing recording equipment and related taping costs unless a judge orders otherwise.
  • Who is Handling Your Equipment? —Unlike other states, Texas is flexible on who can operate your recording equipment.  When read together, Rules 154.101(f) and Rule 154.114 of the Texas Government Code allow attorneys, parties, and their full-time employees to videotape depositions and operate related equipment.  As Burr v. Shannon shows, judges could unilaterally institute protective measures governing how you record your video.
  • Should You Bring a Stenographic Recorder to the Deposition?Rule 203.6(a) gives courts the discretion to require parties to have a certified stenographer transcribe their depositions. While stenographers can transcribe your depositions in real-time, they’re allowed to transcribe them afterward by watching the original tape or a certified copy.
  • Where Are You Holding the Deposition?—Rule 199.2(b)(2)(A-E) states you may need to hold your deposition in the county where your deponent resides, works, transacts business in person, or was served.  It can also take place in the county where the lawsuit was filed if the deponent is a party. You should ensure the location you use supports high-quality audiovisual recording equipment to ensure high-quality footage.

Once you’ve served your notices, you’re now ready to tape your deposition.  This doesn’t mean you’re out of the woods just yet.  As you prepare to tape your deposition, make sure you consider the following questions to avoid additional admissibility obstacles:

  • Are You Following Proper On-Camera & Off-Camera Procedures?—Under Rule 199.5, the deponent must be in the deposition room on all days the deposition is taped and must be sworn in on-camera.  Parties who request the deposition to be held by telephone or via remote feed must arrange for all parties to participate in this manner.  Lawyers are then free to examine and cross-examine the witness but must do so within specified time limits and other procedural restrictions. Parties can also submit written questions for the deposition officer to read to the deponent.  After the deposition has concluded, the deposition officer must file a certification with the court and all parties that complies with Rule 203.2.
  • Are You Observing Deposition-Specific Conduct Rules? —Lawyers taking depositions face restrictions unique to Texas depositions.Under Rule 199.5, each party is limited to six hours for examination and cross-examination, excluding time taken for breaks or off-the-record comments. Lawyers can also only raise leading-question, form-of-question, and non-responsive-answer objections during the deposition, and cannot confer privately with other parties or deponents while the deposition is in progress. While lawyers can instruct deponents not to answer questions, they must only do so to preserve privileges, comply with court orders or civil procedure rules, avoid argumentative or misleading questions, or to preserve their right to a hearing regarding the deposition.
  • Do I Need to Show the Final Tape to the Deponent? Rule 203 normally requires parties to submit stenographic transcripts to deponents and allow them to attach corrections or explanations relating to their answers.  Parties who request to tape depositions of adverse deponents can take advantage of a procedural quirk that prevents them from doing this.  This is because Rule 203.1(c)(3) waives this presentation requirement for taped oral deposition recordings.

Lawyers and parties who don’t follow proper deposition procedures or who are argumentative and suggestive with their objections could risk assuming deposition costs, facing sanctions, waiving their objections, and terminating their depositions. Judges could also allow in testimony, objections, and discussions from the deposition that undermine the deponent’s credibility.

How You Can Use Taped Deposition Footage in Texas Courts

As Texas Rules of Evidence Rule 801(e)(3) states, a deponent’s statements during a taped deposition constitutes non-hearsay evidence and may be used at trial regardless of whether the witness is available or unavailable to testify. You can use this evidence on its own or to refute written or recorded statements offered by your adversary under Rule 106. You can also use prerecorded deposition testimony to impeach witnesses [Rule 801(e)(1)(A)(i)]; provide context to a deponent’s in-trial statements (Rule 107); or prove the content of a writing, recording or photograph (Rule 1007). When a deponent is unavailable to testify, you could use deposition testimony given in a different proceeding. According to Rule 804(b)(1)(A)(i-ii), this is allowed if it’s offered against the same party and that party had an opportunity to examine or cross-examine the deponent.

While Texas allows lawyers to use deposition footage at trial, you’ll still need capable filming and recording tools to produce admissible footage that’s intelligible, accurate, and trustworthy. CaptureCast Legal offers tools that lawyers of all technical backgrounds can use to record and submit pretrial deposition footage into evidence. Contact us to see how CaptureCast Legal can enhance your litigation capabilities.

Disclaimer: This article has been prepared for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any specific issue or problem.

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